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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Pembrook Pines Elmira, LTD )
EB-06-BF-008
Antenna Structure Registrant )
EB-06-BF-009
ASR#s1008080 and 1008079 )
EB-06-BF-010
Licensee of Stations )
EB-06-BF-011
WEHH(AM), Elmira Hts-Horseheads, )
NY NAL/Acct. No. 200732280001
)
WELM(AM), Elmira, NY FRN 0003744174
)
Facility IDs # 55271, 52120
)
))))
CORRECTED COPY
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 12, 2007
By the Resident Agent, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Pembrook Pines Elmira, Ltd. ("Pembrook"), licensee of stations
WEHH(AM), Elmira Heights-Horseheads, NY, and WELM(AM), Elmira, NY, and
registrant of antenna structure numbers 1008080 and 1008079 in Elmira,
NY, apparently willfully and repeatedly violated Sections 17.48(a),
17.51(a), and 73.1745(a) of the Commission's Rules ("Rules") by
failing to comply with antenna structure lighting requirements,
failing to notify the FAA of an antenna structure light outage, and
failing to operate its AM stations consistent with the modes and power
authorized in the stations' licenses. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Pembrook is apparently liable for a forfeiture in the amount of
nineteen thousand dollars ($19,000).
II. BACKGROUND
1. Between January 17, 2006, and January 19, 2006, an agent in the
Commission's Buffalo Office conducted an inspection of the Pembrook
stations and their associated antennas structures.
A. Antenna Structures
2. On January 17, 2006, at 6:00 p.m., an agent in the Commission's
Buffalo Office observed that the top lights were extinguished on
antenna structure # 1008079 and antenna structure # 1008080, which are
part of the three-tower array associated with AM stations WEHH and
WELM. According to the structures' FCC registration, the structures
are required to have a flashing red beacon at the top of the
structure.
2. When the agent observed that the top lights still were not illuminated
on January 18, 2006, the agent contacted Pembrook regarding the status
of the antenna structure lighting. Pembrook indicated that it was
aware of the tower light outages, but was unable to provide evidence
that it had notified the Federal Aviation Administration ("FAA")
regarding the outage. At the direction of the agent, Pembrook
contacted the FAA and a Notice to Airmen ("NOTAM") was issued that
same day. When Pembrook notified the agent via facsimile that a NOTAM
had been issued, it also sent documents, which revealed that Pembrook
was aware of the light outage as early as September 28, 2005, and had
been attempting to locate someone to install the top beacon lights.
Pembrook also claimed that it had notified the FAA on December 24,
2005, but never was able to produce evidence that it had notified the
FAA or that a NOTAM had been issued prior to January 18, 2006. The
agent also independently contacted the FAA and found no evidence that
a prior NOTAM had been issued.
A. Transmitter Operation
3. On January 18, 2006, the agent conducted an inspection of station
WEHH's transmitter. Station WEHH is authorized to operate with a
directional antenna at 5000 watts during the day and 170 watts at
nighttime. During the inspection, the agent found that WEHH was not
capable of reducing power to its authorized nighttime power or
switching to its authorized nighttime directional antenna pattern.
Specifically, the station remained in its daytime directional antenna
pattern with a reduced transmitter power of 450 watts, which far
exceeds its authorized nighttime power. Pembrook filed a letter with
the Commission's Media Bureau on January 26, 2006, requesting special
temporary authority to operate WEHH with 1350 watts daytime power and
46 watts nighttime power.
4. Also on January 18, 2006, the agent conducted an inspection of station
WELM's transmitter. Station WELM is authorized to operate at 5000
watts during the day with a non-directional antenna and 1000 watts at
nighttime with a directional antenna. The agent found that WELM was
not capable of switching to its nighttime operation with a directional
antenna. The agent found that the station's failure to switch to the
directional antenna resulted in each of its monitoring points
exceeding the authorized limits by at least 400%. On January 26, 2006,
Pembrook filed a letter with the Media Bureau regarding WELM's
operations and requested special temporary authority to operate WELM
at 5000 watts daytime power and 250 watts nighttime power.
III. DISCUSSION
3. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) is interpreted
to mean simply that the acts or omissions are committed knowingly. The
term "repeated" means the commission or omission of such act more than
once or for more than one day.
A. Antenna Structure
4. Section 303(q) of the Act states that antenna structure owners shall
maintain the painting and lighting of antenna structures as prescribed
by the Commission. Section 17.51(a) of the Rules requires that all
red obstruction lighting be exhibited from sunset to sunrise unless
otherwise specified. On January 17, 2006, the agent observed that the
top red beacon light was extinguished on antenna structure # 1008079
and antenna structure # 1008080. According to documents provided to
the agent, Pembrook was aware as early as September 28, 2005, that the
top red beacon lights were extinguished. We therefore find that
Pembrook apparently willfully and repeatedly violated Section 17.51(a)
of the Rules by failing to exhibit all red obstruction lighting from
sunset to sunrise.
5. Section 17.48(a) of the Rules requires that tower registrants notify
the FAA Flight Service Station or office of any extinguishment or
malfunction of any required top mounted lighting or flashing light no
matter the position on the structure. As noted above, Pembrook was
aware of the extinguished red beacon lights as early as September 28,
2005. There is no evidence of a NOTAM being issued until January 18,
2006, which was issued only after Pembrook was directed to notify the
FAA by the FCC agent. Accordingly, we find that Pembrook apparently
willfully and repeatedly violated Section 17.48(a) of the Rules by
failing to notify the FAA immediately regarding the extinguished top
red beacon lights.
A. Transmitter Operation
6. Section 73.1745(a) of the Rules provides that "[n]o broadcast station
shall operate at times, or with modes or power, other than those
specified and made a part of the license. . . ." During the
inspection, the agent found that WEHH was not capable of reducing
power to its authorized nighttime power or switching to its authorized
nighttime directional antenna pattern. The agent also found that WELM
was not capable of switching from its daytime operation with a
non-directional antenna to its authorized nighttime operation with a
directional antenna. In light of these problems, on January 26, 2006,
Pembrook filed with the FCC's Media Bureau a request for special
temporary authority to operate station WEHH and WELM at variance with
their licenses. We find that Pembrook apparently willfully and
repeatedly violated Section 73.1745(a) of the Rules by failing to
operate stations WEHH and WELM in accordance with the modes and power
authorized in its licenses.
7. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for failure to comply with prescribed lighting
and/or marking is $10,000. Because Pembrook submitted evidence that it
had purchased new beacon lights and was attempting to locate an
individual to install the new lights, we reduce the proposed
forfeiture to $8,000 for its good faith efforts to comply with our
Rules. The base amount for failing to file required information is
$3,000. We find that failing to notify the FAA of an outage
constitutes a failure to file required information. The base amount
for exceeding power limits is $4,000 for each occurrence. In assessing
the monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) of the Act, which
include the nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and other
such matters as justice may require. Appling the Forfeiture Policy
Statement, Section 1.80, and the statutory factors, a $19,000
forfeiture is warranted.
IV. ORDERING CLAUSES
29. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311, 0.314
and 1.80 of the Commission's Rules, Pembrook Pines Elmira, LTD. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
nineteen thousand dollars ($19,000) for violations of Sections 17.48(a),
17.51(a), and 73.1745(a) of the Rules.
30. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this Notice
of Apparent Liability for Forfeiture, Pembrook Pines Elmira, LTD SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed forfeiture.
31. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The payment
must include the NAL/Acct. No. and FRN No. referenced above. Payment by
check or money order may be mailed to Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-6106.
32. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Buffalo Office, 6400
Sheridan Drive, Williamsville, New York 14221 and must include the
NAL/Acct. No. referenced in the caption.
3 33. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted accounting
practices ("GAAP"); or (3) some other reliable and objective documentation
that accurately reflects the petitioner's current financial status. Any
claim of inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted.
34. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director, Financial Operations, 445 12th Street, S.W.,
Room 1A625, Washington, D.C. 20554.^8
35. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Pembrook Pines Elmira, LTD. at its address
of record.
FEDERAL COMMUNICATIONS COMMISSION
David Viglione
Resident Agent
Buffalo Office
Northeast Region
Enforcement Bureau
47 C.F.R. SS 17.48(a), 17.51(a), and 73.1745(a).
47 U.S.C. S 503(b).
The structures' FCC registration provides that the structures are subject
to FCC paragraphs 1, 3, 11, and 21.
We note that, even if a NOTAM had been issued on December 24, 2005, it
would have expired on January 7, 2006 because the FAA cancels NOTAMs
automatically after fifteen days. The documents submitted by Pembrook
include a copy of a billing statement for beacon and obstruction bulbs,
dated September 28, 2005, and an e-mail regarding delays associated with
installing the new beacon lights, dated December 8, 2005.
See Letter from Harry F. Cole, counsel for Pembrook, to Media Bureau,
dated January 26, 2006, regarding WEHH.
See Letter from Harry F. Cole, counsel for Pembrook, to Media Bureau,
dated January 26, 2006, regarding WELM.
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act . . . ." See Southern California Broadcasting
Co., 6 FCC Rcd 4387 (1991).
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term `repeated,' when used with reference to the
commission or omission of any act, "means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 U.S.C. S 303(q).
47 C.F.R. S 17.51(a).
47 C.F.R. S 17.48(a).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S
1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 17.48(a),
17.51(a), and 73.1745(a).
^8See 47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
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Federal Communications Commission